1 Oblique Intent, Foresight And
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OBLIQUE INTENT, FORESIGHT AND AUTHORISATION Beatrice Krebs* Abstract: In R v Jogee, the Supreme Court of the United Kingdom (UKSC) abolished a contentious doctrine of criminal law which allowed accomplices to a crime A to be convicted of another’s crime B on the basis that they foresaw commission of the latter in the course of the former. The Court held that nothing short of an intention to assist or encourage crime B would suffice to fix the accomplice with criminal liability. At common law intention has traditionally been understood to entail acts and consequences that were either achieved with purpose (direct intent) or foreseen as virtually certain to follow one’s chosen course of conduct (oblique intent). This paper argues that Jogee calls into question the continued existence of this latter type of intent, first, as a conceptually distinct species of intent that is, secondly, based on the idea that criminal intents are best measured in degrees of cognition rather than volition. It concludes that the law of secondary liability appears to be edging towards a conception of intent that ultimately depends on whether the accused had endorsed the consequences of his and the perpetrator’s actions. A. INTRODUCTION Most legal systems accept that there are two ways in which an individual can become involved in criminal wrongdoing. This reflects gradations of moral responsibility between those who act and those who facilitate or otherwise support the acts of others.1 The first is by intentionally committing a crime. Such a person is commonly referred to as the perpetrator or principal offender. The second is by intentionally assisting or encouraging someone else to commit a crime. Such a person is called an accessory or secondary party. Until February 2016, English law recognised a further way in which an individual could become complicit in another’s wrongdoing. This was known as parasitic accessory liability (PAL).2 As the name suggests, under PAL, liability for one crime was parasitic upon participation in another: ‘if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did’.3 This mode of liability differed from ordinary accessory liability – that is the intentional assisting or encouraging of another’s criminal actions – in that it neither required the secondary * Associate Professor in Criminal Law, University of Reading. 1 See John Gardner, ‘Complicity and causality’ (2007) 1(2) Criminal Law and Philosophy 127. 2 The term was coined by Professor Sir John Smith, ‘Criminal liability of accessories: law and law reform’ (1997) 113 LQR 453. 3 R v Jogee [2016] UKSC 8, [2017] AC 387, [2] with reference to Chan Wing-Siu v The Queen [1985] AC 168 (PC). 1 UCL Journal of Law and Jurisprudence party to have positively supported crime B, nor for him to have acted with intention to assist or encourage crime B. Participation in crime A with foresight that crime B might be committed on the same occasion was sufficient to convict individuals of crime B under this approach which, in one form or other, continues to exist in other common law jurisdictions.4 Some commentators have sought to defend this principle on the basis of a ‘change of normative position’5 argument, according to which the initial embarkation on a joint criminal enterprise (crime A) involves a distinctive normative wrong: by signing up to the criminal venture referred to as crime A, the accessory has changed his position vis-à-vis the legal order. From that point onwards, attendant risks (such as that others involved in the enterprise may commit further offences on the occasion), if foreseen,6 will be attributed to the accessory because ‘her new status has moral significance: she associates herself with the conduct of the other members of the group… As such, joint enterprise doctrines impose a form of collective responsibility, predicated on membership of the unlawful concert.’7 This rationale was implicitly rejected, when, in R v Jogee, the Supreme Court of the United Kingdom abolished PAL. Lord Toulson and Lord Hughes (with whom the other three Justices hearing the appeal agreed) left no doubt that they considered the doctrine to be unjustifiable in principle when they asserted that ‘we do not consider that [PAL] can be supported, except on the basis that it has been decided and followed at the highest level.’8 One reason that PAL survived this long was that it facilitated convicting gang members and other participants of group violence when it could not be proved which of them had dealt the fatal blow. The Supreme Court sought to alleviate concerns that Jogee would undermine the fight against gang crime by stressing the concept of conditional intent. Thus, while Jogee has been credited with reforming the English law of complicity, the decision also challenges the common law’s conception of intent, as this paper will argue. I do not mean by this that Jogee has ‘introduced’9 the idea of 4 The High Court of Australia re-affirmed their variant of PAL (Miller v The Queen [2016] HCA 30) in the wake of Jogee, as did the Court of Final Appeal for Hong Kong (Hong Kong Special Administrative Region v Chan Kam Shing [2016] HKCFA 87) and the Supreme Court of New Zealand (Uhrle v The Queen [2016] NZSC 64). 5 See AP Simester, ‘The mental element in complicity’ (2006) 122 LQR 578, 598. 6 The foresight criterion did little to narrow down the scope of the attributable risks. 7 Simester (n 5) 596-597. See also AP Simester, ‘Accessory Liability and common unlawful purpose’ (2017) 133 LQR 73. 8 Jogee (n 3) [79]. 9 John Child, ‘Understanding ulterior mens rea: future conduct intention is conditional intention’ (2017) CLJ 311, 316. 2 Oblique Intent, Foresight and Authorisation conditional intents into the law of complicity. That idea is not new at all. Ultimately all intents are conditional: no one ever intends to do something come what may,10 and by extension, no one ever intends to support someone else in doing something come what may. In this sense, conditional intent has always been part and parcel of the very notion of intent, whether in complicity or other contexts. What I do mean is that Jogee calls into question the conventional wisdom on what it means legally to intend a particular outcome in the first place. Intention as a legal concept has traditionally been seen as encompassing two types of intent, known as direct and ‘oblique’ (or indirect) intent respectively. Direct intent requires volition at its highest: in the eyes of the law, a consequence is directly intended if the offender acted in order to bring it about.11 Oblique intent, by contrast, is a cognitivist concept: a consequence counts as obliquely intended if the offender acted with awareness that it was virtually certain to arise from his chosen course of conduct. In this paper, I will argue that Jogee calls into question the continued existence of this latter type of intent, first, as a conceptually distinct species of intent that is, secondly, based on the idea that criminal intents are best measured in degrees of cognition rather than volition.12 My argument proceeds in two steps: first, I will explain how Jogee sides with what has come to be known as the ‘Inference View’ of intention, thereby rejecting its rival, the so-called ‘Identity View’.13 The former sees intention as separate from foresight, but acknowledges that foresight can be – sometimes powerful – evidence from which the jury might infer intention. The latter, in contrast, equates foresight with intention. In rejecting this latter view, Jogee has realigned the law of complicity with the general law of murder, although differences persist concerning the threshold condition that makes an inference from foresight to intention permissible in either context. Second, once we accept with Jogee that foresight (in a specified degree) does not equate to intention (contrary to the ‘Identity View’) but rather constitutes evidence from which intention can be inferred (‘Inference View’), the question arises what else 10 Gregory Klass, ‘A conditional intent to perform’ (2009) 15 Legal Theory 107, 107-108. 11 R v Mohan [1976] QB 1 (CA). 12 A similar argument has been defended by Antje Pedain concerning the meaning of intention in the context of murder and sole perpetrators, see: Antje Pedain, ‘Intention and the terrorist example’ (2003) Crim LR 579. 13 I am adopting the terminology used by M. Cathleen Kaveny, ‘Inferring intention from foresight’ (2004) 120 LQR 81-107. A further discussion and explanation of the Inference and Identity Views is contained in Section C. 3 UCL Journal of Law and Jurisprudence jurors might look for in drawing conclusions about a defendant’s mental state. It is here that Jogee has arguably opened the door for developing the common law in line with philosophical accounts that locate the reprehensible nature of illicit intents in the actor’s attitude towards foreseen acts and consequences, by keeping alive (just about) the idea that an accessory’s intention (to assist or encourage another’s crime) can be rationalised in terms of authorisation.14 I will conclude that in doing so, Jogee lends support to the view that there is but one common concept of legal intention, which is informed by whether an individual has endorsed (in a specified degree, such as ‘with purpose’) the prohibited act or consequence.15 The discussion proceeds as follows: section B gives an account of the facts and a brief summary of the decision in Jogee.